Morrissey v. Town of Lyme
162 N.H. 777
N.H.2011Background
- Post Pond is a state-held great pond in Lyme, with wetlands around Clay Brook; water levels are historically controlled by beaver dams. The Town's water release policy sought to expand a town beach and playing fields by lowering the pond water level. The DES fixed the Water Mark at three feet on a local gauge; the Town amended its policy to breach beaver dams when water exceeds the Water Mark. DES granted permits for a beaver pipe in 2006; two additional pipes were installed in 2007 without permits or notices to Rogers or Sears. In 2008-2009 the Town breached beaver dams to lower water levels further, allegedly affecting neighbors’ property and wetlands; petitioners sought equitable relief, mandamus, and various statutory and remedial relief against the Town and State. The trial court dismissed the nuisance and takings claims and declined declaratory relief; petitioners appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Private nuisance against Town—sufficiency | Rogers/Sears/Sanders allege substantial interference | Town had no obligation to maintain above natural low-water mark | Nuisance claim against Town dismissed (insufficient interference) |
| Inverse condemnation/takings against Town | Lowering water level substantially interferes with use/enjoyment | No taking; interference not sufficiently direct or substantial | Takings claim dismissed (no constitutional taking) |
| Declaratory relief regarding Env-Wt 303.05(j) interpretation | Petition seeks declaratory relief on rule interpretation | No genuine declaratory- relief controversy; petitions are mandamus-driven | Petition denied as to declaratory relief (no proper request) |
| Waiver of beaver-dam/breach claims | Requests under RSA 201:9, 482-A, 483-B, 212-A invoked | Claim not properly raised in the brief; waived | Waived argument on those statutory violations |
Key Cases Cited
- Cook v. Sullivan, 149 N.H. 774 (2003) (private nuisance requires substantial and unreasonable interference)
- Dunlop v. Daigle, 122 N.H. 295 (1982) (nuisance interference must be tangible and appreciable)
- Sundell v. Town of New London, 119 N.H. 839 (1979) (taking requires more than mere inconvenience; use-rights-based taking standards)
- Robie v. Lillis, 112 N.H. 492 (1972) (land-value depreciation generally not reliable for nuisance takings)
- Heston v. Ousler, 119 N.H. 58 (1979) (dock nuisance where it fully obscured water view and safety concerns)
- Whitcher v. State, 87 N.H. 405 (1935) (limitations on water-management expectations in nuisance context)
- Allianz Global Risks U.S. Ins. Co. v. State of N.H., 161 N.H. 121 (2010) (inverse condemnation—how interference is evaluated substantively)
- J. & M. Lumber & Constr. Co. v. Smyjunas, 161 N.H. 714 (2011) (pleading standards for motions to dismiss in nuisance/takings contexts)
- Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590 (2004) (declaratory relief requirements and ill-pleaded requests)